ALHAJI MOHAMMED ABACHA & ANOR v. ATTORNEY GENERAL OF THE FEDERATION & ORS (2013)

ALHAJI MOHAMMED ABACHA & ANOR v. ATTORNEY GENERAL OF THE FEDERATION & ORS

(2013)LCN/6442(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2013

CA/K/12/2010

RATIO

WHETHER A COMPANY CAN BE LIABLE TO THE SAME EXTENT AS A NATURAL PERSOM

JUSTICES:

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI MOHAMMED ABACHA
2. ALHAJI ABBA ABACHA
(Suing for themselves and on of the family of Late General Sani Abacha) – Appellant(s)

AND

1. ATTORNEY GENERAL OF THE FEDERATION
2. INSPECTOR-GENERAL OF POLICE
3. P. Y. GANA (DCP)
(Chairman Special Investigation Panel)
4. NATIONAL SECURITY ADVISER
5. MAGISTRATE SONJA NACHBAUR – Respondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court sitting at Kaduna, delivered on the 26th day of June, 2009.

The facts of the matter briefly is that some times in February 2008 upon the receipt of a report of fraudulent corrupt practices against some companies a special investigation panel was set up by the Federal Government of Nigeria under the Office of the National Security Adviser to investigate these companies. Invitation letters were dispatched to certain individual to appear before the panel to brief it on all that they know about these companies.

It is against this background that the Appellants as Plaintiffs caused to be issued at the lower court an originating summons dated 3rd March, 2008 against the Respondents jointly and severally, seeking five questions for determination and eight orders of declaratory reliefs as follows:
“1. Having regard to Section 6 of the 1999 Constitution of the Federal Republic of Nigeria and the judgment of Hon. Justice Jinadu of the Federal High Court Lagos, between ALHAJI MOHAMMED SANI ABACHA VS. ATTORNEY GENERAL OF THE FEDERATION & 3 ORS in Suit No. FHC/L/CS/498/2000 whether a foreign Tribunal or Court is competent to sit as a court exercising judicial functions within the Federal Republic of Nigeria.
2. Whether having regard to the judgment of Hon. Justice Jinadu of the Federal High Court of Lagos in Suit No. FHC/L/CS/498/2000 between ALHAJI MOHAMMED SANI ABACHA VS. HON. ATTORNEY GENERAL OF THE FEDERAL REPUBLIC OF NIGERIA & 3 ORS, Preicely Court of Justice Caduz, Liechtenstein can sit in the office of the National Security Adviser (NSA) in Nigeria as a Court of competent jurisdiction and take evidence from witnesses in respect of the forfeiture proceedings in Liechtenstein against the family of late General Sani Abacha.
3. Whether having regard to Section 6 of the 1999 Constitution of the Federal Republic of Nigeria, the Judicial powers vested in courts in Nigeria extend to judicial officers outside the Territorial waters of Nigeria and in this case, to include the judicial officers from the Government of Liechtenstein.
4. Whether having regards to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, the proposed proceedings to be conducted in the office of the National Security Adviser (NSA) Three Arms Zone Abuja in the presence of a Police Officer without the participation of the plaintiffs is not contrary to the principle of fair hearing as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria.
5. Whether the 2nd and 3rd Defendants have powers under the 1999 Constitution of the Federal Republic of Nigeria or any other law to issue witness summon to witnesses to come to court and testify against the family of late General Sani Abacha or against any citizen of the Federal Republic of Nigeria.

WHEREOF the plaintiffs claim against the Defendants jointly and severally as follows:
1. A DECLARATION that the 4th Defendant (a National of Liechtenstein and a Judicial Officer) is not permitted within the contemplation of the 1999 Constitution of the Federal Republic of Nigeria to conduct Liechtenstein Criminal Proceedings against the family of late General Sani Abacha at the office of the National Security Adviser (NSA)Three Arms Zone Abuja in Nigeria.
2. A DECLARATION that it is against the principle of International Law for the 4th Defendant to come to Nigeria and act as a Judicial Officer to exercise Judicial functions in Nigeria in respect of Criminal Proceedings in Liechtenstein against the family of late General Sani Abacha.
3. A DECLARATION that the consent granted by the 1st the Office of the National Security Adviser (NSA) Three Arms Zone Abuja or elsewhere in Nigeria for the purpose of forfeiture proceedings against the family of late General Sani Abacha in respect of alleged financial impropriety or misdeeds contrary to Liechtenstein Criminal Law is a breach of the 1999 Constitution of the Federal Republic of Nigeria, and therefore, it is unconstitutional, illegal, null and void.
4. A DECLARATION that the issuance of witness summons and letters to Alhaji Bashir Dalhatu, Alhaji Arisekola, Alhaji Abubakar Alhaji etc to come and testify at the office of the National Security Adviser (NSA) Three Arms Zone Abuja in respect of the Criminal Proceedings at Pricely Court against Abacha family is ultra vires the powers of the 2nd and 3rd defendants.
5. AN ORDER setting aside the purported letters of invitation issued by the 2nd and 3rd Defendants to Alhaji Bashir Dalhatu, Alhaji Abdul Azeez Arisekola, Alhaji Abubakar Alhaji etc in respect of Criminal Proceedings against Abacha family to come and testify on the 12 day of March, 2008 at the office of the National Security Adviser (NSA) Three Arms Zone Abuja as same is ultra vires the powers of the 2nd and 3rd defendants.
6. AN ORDER restraining the Defendants, their agents, privies and or servants from conducting Criminal Proceedings in respect of the forfeiture proceedings against the family of late General Sani Abacha at the office of the National Security Adviser (NSA) Three Arms Zone Abuja or anywhere as same is contrary to the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
7. AN ORDER of perpetual injunction, restraining the Defendants, their agents, privies, servants and whomsoever from taking evidence from witnesses (i.e. Alhaji Bashir Mohammed Dalhatu, Alhaji Arisekola, Alhaji Abubakar and any other witnesses) at the office of the National Security Adviser (NSA) Three Arms Zone Abuja or anywhere within the Federal Republic of Nigeria.
8. AN ORDER PERPETUALLY restraining the 5th Defendant, his agents, privies and or servants from exercising judicial functions in the Federal Republic of Nigeria particularly in respect of criminal proceedings against Abacha family”.

The Plaintiffs/Appellants also filed along with the originating summons a motion ex-parte supported by an affidavit of urgency and an exhibit marked as exhibit ‘A’. The motion ex-parte prayed the Court for the following reliefs:
“1. AN ORDER granting leave to the Plaintiff/Applicant to serve the Originating Summons and all processes in this suit by substituted service on the 5th Defendant by delivery of all the processes in this suit to the office of the Attorney General of the Federation of Nigeria, Federal Ministry of Justice, Shehu Shagari Way Abuja and such service shall be deemed to be good service.
2. AN ORDER limiting the period of entering of appearance to three (3) days for the Defendants to enter memorandum of Appearances in this Originating Summons.
3. AN ORDER OF INTERIM INJUNCTION restraining the Defendants, their agents, privies and or servants from conducting criminal proceedings or taking steps to proceed against Abacha family in respect of criminal proceedings in Liechtenstein at the office of the National Security Adviser or any where in Nigeria between the 12th day of March, 2008 to 18th day of March, 2008 or any other day pending the hearing and determination of the motion on notice.
4. AND for such further order or other orders as the Honourable Court may deem fit to make in the present circumstance”.

The Defendants/Respondents on the 10th June, 2008 filed a notice of preliminary objection dated 9th June, 2008 challenging the jurisdiction of the lower court to entertain the matter on the ground that the plaintiffs/Appellants have no locus standi to institute the action.

The lower court delivered its judgment which included ruling on the preliminary objection on the 26th June, 2009 declining jurisdiction to entertain the matter and accordingly struck out the suit.

Dissatisfied with this decision of the lower court the Plaintiffs/Appellants filed their notice of Appeal containing three grounds of appeal on the 5th August, 2009. In accordance with the rules of this court parties filed their respective briefs of argument.
The Appellants, brief of argument dated 9th November, 2010 and filed 10th November, 2010 prepared by P. O. Atabo Esq. was deemed filed on 9th March, 2012.

Learned counsel to the Appellant at the hearing of this appeal adopted the said brief of argument as the Appellant’s arguments and submissions in this appeal. He urged the court to allow the Appeal.
The Respondents’ brief of argument dated 13th March, 2012 and filed the same date was prepared by B. A. Saidu Esq. Learned counsel for the Respondents adopted their brief of argument as the Respondents’ argument and submission in this appeal and urged the court to dismiss the appeal and affirm the judgment of the lower Court.

The Appellants from their three (3) grounds of appeal contained in the Notice of Appeal distilled two (2) issues for determination of this court. The issues are hereby reproduced as follows:
“i. Whether the trial court was right in holding that the Appellants did not disclose locus standi on the subject matter of the originating summons before the lower court in spite of several unchallenged, uncontradicted and uncontroverted facts before the lower court? (Distilled from ground 1 & 2 of the Notice of Appeal)
ii. Whether the trial court was right not to have considered or placed any reliance on the facts deposed to in the appellants’ further affidavit in support of the Originating Summons before arriving at its decision? (Distilled from ground 3 of the Notice of Appeal)”.

The Respondents, on their part also formulated two (2) issues for determination, and they read thus:
“3.1 Whether or not the trial court was right to hold that the Appellants have no locus standi to institute this action.
3.2 Whether the trial judge considered the affidavit and further affidavit before arriving at his decision”.

It is very apparent that but for the style of couching the issues, the issues formulated by both parties to this appeal are very similar.
The issues as couched by the Respondents are more elegant and same are adopted for the determination of this Appeal.

ISSUE ONE (1)
“Whether or not the trial court was right to hold that the Appellants have no locus standi to institute this action”

On this first issue it has been submitted on behalf of the Appellants, that their affidavits in support of their originating summons before the lower court clearly disclosed that the main content of the scheduled sitting of Magistrate Sonja Nachbaur (5th Respondent) as a court of Special Investigation Panel is for the sole purpose of investigating the companies owned by Abacha family for likely forfeiture. The court was referred to paragraph 4 (B), (F), and (C) of the affidavit in support of the originating summons and paragraphs 4 (A) and 5 (B) of the further affidavit in support of the originating summons at pages 16 and 108 of the record of Appeal respectively.

It was contended that the contents of the said affidavits were not in any way challenged, controverted or contradicted by the Defendants/Respondents at the lower court. Learned counsel submitted on behalf of the appellants that the lower court had no other business than to rely on the unchallenged, uncontroverted and uncontradicted affidavit evidence to arrive at its decision. The court was referred to the cases of M/V Gongola Hope v. Smiths Cases Ltd (2007) All FWLR (pt.388) Page 1005 at 1026.
Nzeribe v. Dave Eng Co. (1994) 8 NWLR (pt. 361) page 127 at pages 137 and 148.

The court was also referred to paragraph 2 of the Court Summons issued to the intended witnesses by the 3rd Respondent (P.Y. Gana, DCP) at page 19 of the record of appeal.

Learned counsel for the Appellants argued that the main essence of the purposed proceeding is for the investigation of the Abacha family as it concerns companies and assets owned by them.
He maintained that the Respondents cannot be heard to say or push the position that the Appellants did not disclose any interest on the cause of action or that the cause of action arose from the said summons issued to witnesses. Learned counsel contended that doing so obviously translates to the Defendants/Respondents blowing hot and cold at the same time.

The law and in fact Justice he submitted does not allow a party to approbate and reprobate simultaneously over same or similar matter.

Learned counsel argued that the implication of paragraph 2 of the witness summon is that the Respondents have clearly expressed that the very essence of whether proposed investigation by the 5th Respondent is for the forfeiture proceeding against the companies owned by Abacha family.

He submitted that Sections 26 viz a vis Section 151 of the Evidence Act estops the Respondents from denying that the Appellant did not disclose any interest to the cause of action before the lower court and that by the same line of reasoning the trial court erred in law by holding that the Appellants lack the requisite locus standi to institute the suit at the lower court. The court was urged to resolve this first issue in favour of the Appellants and allow this appeal.

It has been submitted on behalf of the Respondents, on the first issue that the Plaintiffs/Appellants have no locus standi to institute this suit because the affidavit in support of the Appellants’ originating summons before the lower court did not disclose the sufficient legal interest of the Appellants.

Learned counsel contended that it is very clear that the invitation letters were neither addressed to the Appellants nor to the companies.

He maintained that the fact that the Appellants said that criminal allegations were made against the companies of their father, that is not enough for them to institute a civil action in their own names, for the companies, because if a wrong is committed against the company the proper party to initiate the action is the company itself and not a third party as in this matter. In support of this submission, the Court was referred to the cases of Haston (NP) Ltd v. African Continental Bank Ltd (2002) FWLR (pt. 119) Page 1476 at 1490.
A. G. Lagos State v. Eko Hotels Ltd (2006) All FWLR (Pt.342) page 1470 – FWLR (pt. 46) page 859 at 584.

Learned counsel submitted that the Appellants are not competent to institute this action since the parties did not sue in the name of the companies.

Learned counsel argued that even if the Appellants are the owners of the companies, they can not initiate this action because they are separate and distinct from the companies let alone that they claimed the companies belong to their father. The court was referred in support of this submission to Section 37 of the Companies and Allied Matters Act (CAMA) 2004 and the cases of Zest News Ltd v. Senator Mahmud Waziri (2003) FWLR (pt.186) page 656 at 663;
Salomon v. Salomon (1897) AC 22.

Learned counsel maintained that the principle of law established in these cases is that a company has a distinct and separate legal personality from the subscribers of the memorandum, staff, officers, directors and/or shareholders.

Learned counsel urged that in the present case the Appellants did not disclose in their affidavits to be either of these, i.e. subscribers of the memorandum, staff, officers, directors or shareholders and as such cannot initiate any action, more so when the invitation letters were neither addressed to the companies nor to the Appellants.

He submitted that the Appellants do not have a locus standi to initiate this action. Learned counsel defined locus standi to mean, the legal capacity to initiate proceedings in a court of law. In support of this submission the following cases were cited.
Owodunni v. Registered Trustee, Celestial Church of Christ (2000) FWLR (Pt.46) Page 854 at 859;
Nyame v. Federal Republic of Nigeria (2010) 42 NSCQR 54.

Learned counsel submitted that where the proper parties are not before the court, the action is incompetent and the court is devoid of the power to adjudicate upon it. He referred in support of this submission to the case of Nigeria Football Coaches Association v. Laloko (2006) FWLR (pt.144) page 482 at 496. In the judgment of the lower Court which is the subject of this appeal, the court held that the forfeiture to which the letter of invitation relates concern the listed companies and that the Plaintiff did not show their respective interest in those companies. The court further held that neither the said invitation nor any of the averments in support of the originating summons shows any connection with the plaintiffs and the listed companies. It is the opinion of the lower court that the plaintiffs having failed to show sufficient interest in the suit they could therefore not seek remedy arising there from.

What the judgment of the lower court said is that the appellants had no locus standi to institute the action brought before it.

In Nyame v. Federal Republic of Nigeria (2010) 42 NSCQR 54 it was held that:
The term locus standi entails the legal capacity of instituting, initiating or Commencement of an action in a competent Court of Law or tribunal without any inhibition, obstruction or hindrance from any body or person.
Whatsoever including the provision of any existing law.
The fundamental aspect of locus standi is that it focuses on the party seeking to get its complaint heard before the Court.
It is settled law that the Plaintiff will have locus standi in a matter only if he has a special right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced or where the interest is adversely affected.
All these will be subject to the facts of each case…”
It is trite that for a litigant to invoke the judicial power of the Court, he must show sufficient interest or that of injury he has sustained or will suffer from the infringement complained of. The interest of the litigant in the matter or the injury suffered or will be suffered by him is the factor to be considered in determining the question whether the litigant has locus standi to institute the action.
The consideration should be based on individual facts or special circumstance of each case.

In the instant appeal the Appellants claimed that their locus standi stems from their averments in paragraphs 4(B), (F) and (L) of the affidavit in support of the originating summons and paragraphs 4(A) and 5(B) of the further affidavit in support of the originating summons at pages 16 and 108 of the Record of Appeal respectively.

Paragraphs 4(b), (F) and (L) of the Affidavit in support of the Originating Summons located at page 16 – 17 of the Record of Appeal are hereby reproduced as follows:
“AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS
4. That I was informed by Alhaji Mohammed Abacha the 1st surviving son of Late General Sani Abacha and R.O. Atabo Esq. counsel briefed to handled this case in our chambers on the 29th day of February, 2008 at about 4.00 pm and I verily believe them to be true and correct as follows:
B. That the 1st Plaintiff is the eldest Surviving Son of Late General Sani Abacha while the 2nd Plaintiff is one of the children of late General Sani Abacha.
F. Consequent upon the deposition in paragraph 4E above, criminal proceedings was commenced at the princely Court in Liechtenstein against the members of Abacha family and his Companies in Liechtenstein.
L. That the proposed sitting of the court is about forfeiture proceedings in respect of the family of late General Sani Abacha. A copy of the letter/document titled: objective forfeiture and absorption proceedings concerning companies Glotar Est. and others “Abacha Complex” is attached and marked as Exhibit “C”.

Paragraph 4(A) and 5(B) of the further affidavit in support of the originating summons contained on pages 108 of the Record of Appeal are hereby reproduced as follows:
“FURTHER AFFIDAVIT TO ORIGINATING SUMMONS
4. That I was informed by Alhaji Mohammed Abacha in our office on the 5th day of March, 2008 at about 2:00pm of the following facts and I verily believe him to be true and correct to wit:
a. That the principality of Liechtenstein commenced Criminal Proceeding against the 1st Plaintiff, one Dr. Nichlos Uwazie, Dr. Otto for money laundering.
5. That I was further informed by R.O. Atabo counsel handling this case in our office at about 2.00pm on 5/3/05 and I verily believe him to be true and correct.
b. That allowing the 5th Defendant to sit in a private office of the 4th Defendant and conduct judicial proceedings under Liechtenstein Law in the presence of a Police Officer will cause damages to the Plaintiffs as the evidence obtained from such illegal proceedings will be used against them in the principality of Liechtenstein to the forfeiture proceedings against Abacha family”.

A careful perusal of these paragraph of the affidavit in support of the Originating Summon reveal that the Appellants have not disclosed sufficient legal interest in the matter.

The companies listed for investigation are severally a legal entity each with its individual personality. In the instant case though the companies listed for investigation may be owned by the Abacha family, the companies are at law different persons altogether from the subscribers to the memorandum of their Association. The companies are not in law the agents of the subscribers or trustees for them. The subscribers as members are not liable in any shape or form, except to the extent and in the manner provided by the Companies and Allied Matters Act, 1990. See Aso Motel Kaduna Ltd v. Deyemo (2006) 7 NWLR (pt. 978) page 93.
In Ashibuogwu v. Attorney – General (Bendel) (1988), NWLR (pt.69) page 138 it was held that a government owned limited liability company posses a legal personality of its own. It can sue and be sued by its name. Its shareholders, even if the major or sole shareholder is the Federal Government, it cannot be sued for debt incurred by the Company. See Macaura v. Northern Assurance Co. Ltd. (1975) AC 619.
A. L. Underwood Ltd v. Bank of Liverpool and Motors Ltd (1924) 1 KB 775.
An incorporated Company is a creation of law, clothed with independent legal personality from the moment of its incorporation.
It has a distinct and separate personality from those that laboured to give birth to it. See Salomon v. Salomon & Co. Ltd (1897) AC 22 at 51; Trenco Nigeria Ltd v. African Real Estate Ltd (1978) 1 LRN 146 at 153; Marina Nominees Ltd v. Federal Board of Inland Revenue (1986) 2 NWLR (pt.20) page 48 at 61.
A company registered is a separate and distinct entity from any one of its shareholders, no matter how many shares he may hold.
See Section 37 of the company and Allied Matters Act 1990; CBDI v. COBEC (Nig) Ltd (2004) 13 NWLR (pt. 890) page 376; K. S. O and Allied Products Ltd v. Kafa Trading Co. Ltd (1996) 3 NWLR (pt. 436) Page 244.

A careful perusal of the affidavit and further affidavit in support of the Originating Summons and in particular the paragraphs referred the Court and reproduced in this judgment, revealed that the Appellants did not disclose sufficient legal interest in this matter.

The invitation letters Exhibit A which the Appellants claim gave them the cause of action in this matter, were neither addressed to them nor to the companies listed for investigation.

By virtue of the provisions of Section 65 of Companies and Allied Matters Act 1990, a company may be liable in crime to the same extent as a natural person. Thus a company could be prosecuted for the common law offence of conspiracy to defraud even though mens rea is an essential element of the offence. See Bolton (Engineering) Co. Ltd v. Graham & Sons (1957) 1 QB 157; DPP v. Kent and Sussex Contractors Ltd (1944) AC 146; R v. LCR Haulage Ltd (1944) KB 551.
The fact that the Appellants said criminal allegation were made against the companies of their father, is not enough for them to institute a civil action in their own names. The companies being legal entities, capable of suing and being sued. The companies are the proper party to initiate an action to redress any wrong done to them, and not the Appellants.
In A. G Lagos State v. Eko Hotels Ltd (2006) All FWLR (pt. 342) at page 1470, the Supreme Court per Tobi JSC held as follows:-
“I should take the Rule in FOSS v. HARBOTTLE (1843) 2 HA 461 because it is applicable here in (Nigeria). The rule is that the company or association is the proper Plaintiff in respect of injuries done to it. No individual will be allowed to bring action in respect of acts done to the companies”.

In the instant appeal, the Appellants have not indicated, shown or disclosed in the affidavit and further affidavit in support of the Originating Summons whether they are either subscribers to the companies memorandum or shareholders in the companies under investigation. The Appellants did not indicate whether they are staff, officers or directors of the said companies.

The parties invited to give testimony in respect of the companies listed for investigation have not taken any action on behalf of the companies against the people that invited them, or institute an action in the name and on behalf of those companies.

I have earlier held in this judgment that the Appellants are separate and distinct from the companies. The said companies listed for investigation who are the proper parties with sufficient interest to institute the action before the lower Court, have not thought it proper to do so and are also not before the lower Court having not been joined as parties to this action. The action instituted by the Appellants is therefore incompetent and the lower Court was correct in declining jurisdiction to entertain it. See Nigerian Football Coaches Association v. Laloko (supra).
This issue is resolved in favour of the Respondents.

ISSUE TWO (2)
“Whether the trial judge considered the affidavit and further affidavit before arriving at his decision”.

On this issue learned counsel to the Appellants submitted that the learned trial judge erred in law when he failed to place any reliance on the further affidavit filed by the Appellant in support of their originating summons and as such misdirected himself in striking out the Appellants’ originating summons on ground of lack of locus standi. He argued that in the Appellants’ further affidavit it was clearly stated that there is a criminal forfeiture proceeding going on against the first Appellant in the principality of Liechtenstein, and that the proposed sitting in the office of the 4th Respondent is a continuation or an extension of the said forfeiture proceeding.
Learned counsel contended that the piece of evidence was not challenged or controverted by the Respondents in any way.

He maintained that the Appellants in their said further and better affidavit deposed to the fact that one Abdullahi Haruna Esq. Solicitor and Advocate of Supreme Court of Nigeria had gone and testified on behalf of the 1st Appellant before the Court in the said criminal matter for forfeiture in the principality of Liechtenstein, but that the learned trial judge did not advert his mind to all the unchallenged and uncontroverted facts. The Court was referred in support of this submission to the case of Onagoruwa v. Adeniji (1993) 5 NWLR (pt. 293) page 317 at 339. Where it was held that it is the position of the law that an affidavit evidence not denied by the Respondent is deemed to be admitted.

Learned counsel submitted that the implication of the above position of the law is that a trial Court before which an undenied affidavit evidence is placed is bound to act on it. He referred the Court on this preposition to the Supreme Court decision in the case of Imah v. Okogbe (1993) 9 NWLR (pt.316) page 159 at 178, where it was held that in the event of a trial Court failing to consider and evaluate the evidence adduced by both parties to a dispute on certain relevant issues, there is a duty on the appellate Court to consider and evaluate such evidence and make proper findings, so long as the issue of credibility of witness is not involved.
The Court was again referred to the case of Anaeze v. Anyaso (1993) 5 NWLR (pt. 291) page 1 at 34, where the Supreme Court held that where the trial Court was unable to or failed to properly evaluate the evidence before it, an appellate Court can do so and make proper findings on the evidence. Learned counsel to the Appellants urged the Court to follow the decision of the Supreme Court in holding that the trial Court failed to properly evaluate the evidence of the Appellants’ further affidavit. He invited the Court to evaluate the evidence and resolve this second issue in favour of the Appellants.

On this second issue it has been argued on behalf of the Respondents that the learned trial judge has deeply considered the Appellants’ further affidavit in support of the Originating summons which part of it are reproduced by the learned trial judge on page 251 of the record of appeal.

Learned counsel for the Respondents contended that the depositions in the further affidavit did not state that the forfeiture proceeding is against Abacha’s companies. He argued that even if it is so, it is the companies themselves that can institute the action in their own names and not an individual who did not disclose his relationship with the companies.
Learned counsel maintained that a company is separate and distinct from the subscribers to the Memorandum of Association, staff, officers directors, shareholders etc. He referred the Court to Section 37 of the Companies and Allied Matters Act 2004 and the cases of Zest News Ltd v. Senator Mahmudu Waziri (supra); Salomon v. Salomon (supra).

Learned counsel submitted that even with the depositions in both affidavit and further affidavit in support of the Originating Summons, the Appellants did not disclose their relationship with the company and that even if they did, the companies being a legal entity, the action could have been maintained or instituted only in their names and not in the Appellants’ names.

He argued that the failure by the Appellants to disclose their status, positions or relationship with the company devoid them the capacity to sue and as such lack locus standi.

Having held on the first issue that the Appellants have no locus standi to institute this action at the lower Court, that could have been the end of the matter. But realizing that if the evidence presented by a litigant are not considered by a Court of law, that may amount to denial of fair hearing, I decided to examine whether the trial Court had utilized the evidence presented before it judicially and judiciously.

I have also carefully perused the decision of the learned trial judge in search for justice of the matter and I have observed that the learned trial judge reproduced both the affidavit and the further affidavit in support of the Originating Summons at pages 249 -251 of the record of appeal.

The learned trial judge took into consideration both affidavits in reaching his decision. The learned trial judge said at page 260 line 20 -25 of the Record of Appeal thus:

“Thus to determine the Cause of the Plaintiff’s action in this suit and their right of action or locus standi critical examination will only be made to the Affidavit evidence in support of the Originating Summons. I have already set out the pertinent averments of the said affidavits in support of the Originating Summons as well as the reliefs being sought and it is my considered view that the aggregate facts upon which the Plaintiffs are laying claim against the Defendants in this suit is exhibit A the letter inviting Alhaji Bashir Mohammed Dalhatu to give evidence in the forfeiture case in relation to the listed companies. Thus the cause of action is the issuance of that letter”.

The learned trial judge further said on the affidavits in support of the Originating Summons at page 261 lines 9 – 13, and lines 17 – 19 thus:

“The letter of invitation is clearly not addressed to any of the plaintiff nor does it disclose any connection with the Plaintiffs. However, in paragraph 4 (L) of the said Affidavit in support of the Originating Summons it states that the proposed sitting is about the forfeiture in respect of the family of late General Abacha.
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Neither the said invitation nor any of the averment in support of the originating summons shows any connection with the Plaintiffs and the listed companies”.

It is clear from the extract of the judgment of the trial Court reproduced above that it has properly, efficiently evaluated and utilized the evidence of the Appellants as contained in both the main affidavit and the further affidavit in support of the Originating Summons in arriving at its decision.

The second issue is also resolved in favour of the Respondents.
There is no merit in this appeal and it is hereby dismissed. The decision of the lower Court delivered on 26th June, 2009 is hereby affirmed. There shall be no order as to costs.

DALHATU ADAMU, J.C.A.: I have gone through the draft of the judgment of my learned brother A. Aboki JCA in this appeal. I agree with his reasons and the conclusion he arrived at in the lead judgment. I also feel that there is no merit in the appeal which I hereby dismissed. I abide by the consequential orders as made in the lead judgment including the order on costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I am in full agreement with the reasoning and conclusion contained in the lead judgment delivered by my learned brother, Aboki JCA, in this appeal. I have nothing more to add. I, too, dismiss the appeal as lacking in merit and I affirm the decision of the Honourable Justice M. L. Shuaibu of the Federal High Court in Suit No. FHC/KD/CS/17/2008 delivered on the 26th of June, 2009. I endorse the order on cost in the lead judgment.

Appearances

R. O. Atabo with H. L. Haruna, S. E. Gabriel and J. Oyibo For Appellant

AND

B. A. Saidu For Respondent